HOW A FIRM CAN DEAL WITH A DIFFICULT PARTNER

by Joel A. Rose

It is the nature of a law practice that the activity and behavior of the individual partner have an impact on all partners, problems frequently surface only after the office has experienced effectiveness, and its ability to serve clients in a timely and profitable manner. Income aside, the lawyers may become increasingly disgruntled as the problem continues, thereby further exacerbating the situation and obscuring the crucial issues involved.

In an effort to keep an isolated incident from becoming a major ongoing problem, the office must heed the early warnings indicated by circumstances that are not too difficult to recognize. Following are examples of situations where the individual's behavior has consequences that are shared by all members of the office.

The partner who:

Works too few hours, rendering time spent on clients as unproductive.

Does not produce adequate revenue, although a hard worker.

Hoards work due to inability or unwillingness to delegate.

Readily assigns work, but does not follow-up or provide direction to other attorneys or staff.

Will not participate in office-approved activities, i.e., practice development, etc.

The office that ignores this kind of situation in the hope that the problem will work itself out and disappear is merely compounding the problem, since inaction will be viewed as a tacit endorsement of the undesirable behavior. Law partnerships are as fragile and potentially volatile as human relationships, and it is often very difficult for partners to face one another openly and candidly. It is understandable that partners feel reluctant to discuss one another's personal difficulties. After all, what can you do with a senior partner who cannot be trusted to provide counsel to office clients? What do you say to a name partner who has a serious drinking problem and also handles one of the office's important clients? What should be done with a bright young partner who is involved with drugs? How do you tell a fifty-five-year-old partner that the billings and collections are inadequate to cover individual overhead?

As competitive pressures continue to mount, the office will be forced to cope with these and related issues. Should the problem partner be ignored? Will a stern lecture, followed by a strict warning, be sufficient? What if the problem continues? Should the senior partner with a drinking problem be "put out to pasture," or designated as "Of Counsel"?

What should we tell the client? Should we expel the problem partner? Should the partner's income be reduced and, if so, by how much? Should we prohibit the problem partner from further contact with clients?

The types of problems describe above reveal themselves as (1) internal problems, and (2) external problems. The internal problems adversely affect the interpersonal and economic relationships among and between the partners. External problems adversely affect the office's image, reputation, professional standing among its clients, the community and the bar.

It has been the author's experience that interpersonal problems among partners will invariably become external problems, unless the situation is recognized and steps are taken to resolve the issues at an early stage. Conversely, external problems are bound to become internal problems.

Lawyer Management

An office's position in the evolutionary process of governance frequently will dictate the kind of approach selected for dealing with the problem partner. It has been the author's experience that offices with strong central management, e.g., a dominant managing partner or CEO type or a committee system based upon representative governance, etc., are usually better able to address problems. In the offices organized as a democracy no individual, or group, may be willing to assume authority to deal with problems since that type of action may be viewed as disturbing the "congenial and collegial relationship between the attorneys."

The partners' attitude toward office management and the lawyers who manage the office is a key factor in determining the kind of approaches selected for dealing with the problem partner. Is management something that lawyers do only when they have the time - in opposition to the "real work" that lawyers are supposed to be doing? Has the management function been defined? Has the lawyer manager's role been determined and agreed to by all the partners?

In the former situation, partners may never "make the time" to confront the problem partner. In the latter instance, the managing partner, a committee, or others may be designated to address the issue of the problem partner.

The office must determine where the management process ranks in relation to the time devoted to fee production, business development, or client retention activities. There will be little or no incentive for any partner to become involved in the management process unless the partners are willing to factor the time devoted to management activities into the office's compensation system. The partners must also be in accord about the lawyer manager's role in the management function. In addition, the office must avoid the serious mistake of assigning management responsibility to the partner who merely wants the post, to the senior most member of the office because he is the oldest, or to the partner with excess time. The management role should not be claimed by virtue of position or circumstances; it must accrue to the individual best qualified for the position.

One of the most important characteristics of a good lawyer manager is "people skills." Without this ability, even the best technician will fail. The lawyer manager with good interpersonal skills will be able to approach the problem partner or recognize when to seek assistance from others who may be in a better position to deal with the problem.

The partners should perceive the office as a unified entity and not as a group of lawyers who are conveniently sharing space and the administrative staff. To the extent that the partners acknowledge and accept this concept and agree to: (1) a form of governance; (2) the role, authority, and responsibility of the lawyer managers; and (3) the minimum criteria or conditions of partner performance, the professional, and economic objectives of the office can be administered with a minimum amount of tension, and problem partners may be dealt with in a more objective atmosphere.

Establishing Objectives and Standards

The office that recognizes the need for criteria for all partners will attempt to circumvent the problem potential by establishing objectives and standards at the beginning of its relationship with its members. The initial step is to prepare a written partnership agreement.

Attorneys who practice law in an organized environment, i.e., partnership or professional corporation, are dependent upon the professional abilities of their partners, the personal character of each, and the ability of each of work as a member of a team. Central to this form or organization is a written agreement that defines the obligations and responsibilities or attorneys who join together to practice law as a partnership or as a professional corporation.

The drafting and execution of a written agreement is especially important since with the passage of time the interests of the attorneys involved may change. One lawyer may decide he prefers to devote more time to the social activities associated with generating business rather than being in the office and recording X number of billable hours a day. Others may become more involved in civic and charitable activities or place certain of their personal investments and other entrepreneurial activities ahead of the office.

In decisions leading to the formation of a partnership or professional corporation or admitting attorneys, it is critical that the lawyers consider what each individual is prepared to commit to the office and how much variance they are prepared to tolerate among other members of the office. These obligations and responsibilities should go beyond maintaining professional accreditation and conforming to the Canon of Ethics. Rather, they should extend to a written commitment by each of the attorneys to devote their "best effort" or an agreed upon amount of time, including such activities as production of work, practice development, office approved pro bono service, office management, and administration.

Some agreements contain a provision setting forth each attorney's obligation to account to other members for their total commitment to the office.

The following is an excerpt from the model partnership agreement published by the Economics Committee of the New York State Bar Association, as an example of such a provision.

Each partner shall devote his/her best efforts and substantially all his/her normal business time to professionally serving the firm and its clients and to any other activities sanctioned by (all/a majority/___%) the management committee of the partners for the number of hours so sanctioned.

Further, it is recommended that the written and executive document identify the quality and nature of professional life that the attorneys intend to create by virtue of becoming members of the firm.

The following provision, excerpted from an employment agreement of a mid-size professional corporation, defines the conditions governing a lawyer's employment with that office. Specifically, it describes those events that warrant immediate discipline or discharge from the office with or without notice.

Employee agrees to devote the active and industrious practice of his profession in the interests of the Employer, and does pledge his faithful adherence to the principles of professional ethics of the American Bar Association and the (State) Bar Association and his careful avoidance of all personal acts, habits and usages which might injure in any way, directly or indirectly, the professional or individual reputation of the Employer or any attorney employed by it, including himself. It is expressly understood and agreed by the parties hereto that any breach of the terms and conditions of this paragraph by the Employee shall entitle the Employer, by a majority of the board of directors (Employee, if a member of the board, not voting), immediately to discharge Employee from employment hereunder, with or without notice, more particularly, though not by way of limitation, if any of the following events occur:

The withdrawal or suspension of Employee's license to practice law in the State; or

Employee's being held guilty of professional misconduct by any professional organization having jurisdiction; or

The withholding by Employee of any professional or other fees; or

Employee's bankruptcy, insolvency, making of an assignment for the benefit of creditors or the administration of Employee's assets in any kind or type of creditor's proceedings, voluntary or involuntary; or

Employee's excessive use of alcohol or any addictive drug or other substance.

To the extent that these kinds of provisions are included in the office agreement, every partner has the right to address the actions or inactions of other partners. Therefore, if, over a period of time, one of the attorneys has not devoted an appropriate amount of time to office-approved matters, other partners can raise the issue without feeling they are unjustly pointing fingers at individuals.

While the examples provided previously are not all inclusive, they are useful as reminders of the tools available to lawyer managers concerned about how their organization should proceed to establish control over the quality of the life of the office. Once the rudiments of partnership are in place, the office must take the step of implementing a process for quality control in an atmosphere that encourages performance and adherence to established standards. One method of building in controls for preservation of quality in performance and service is through the use of the peer review evaluation process.

Peer Review

From the office's standpoint, the basic purposes for this type of review are to improve the effectiveness of the attorneys' performance in their current positions, aid the administration and further development of their careers, and alert management to potential problem areas at the earliest stage. For example, the individual who was admitted to partnership and is unable to perform at this level continues to demonstrate the office's failure to implement appropriate evaluation procedures and mechanisms for providing feedback to office management and the individual concerning poor performance. This type of situation could have been checked at an early point of the attorney's development through the use of more stringent evaluation procedures.

Many of the functions that partners perform in the law office can be enhanced by the effective application of annual standardized peer review evaluation. This type of evaluation is part of a systematic appraisal process for evaluating the attorney against a set of predetermined standards of measurement. These standards are a combination of qualitative, quantitative, relative, and purely judgmental categories that relate to the lawyer's performance in the office.

A peer review evaluation program can provide lawyers with clarification of what is expected and how they measure up to the office's standards. In addition, lawyer management may well be served by the documentation that is provided by the evaluations as support for remedial or more severe actions that may be prompted by the results of the review. One work of caution. When deciding whether to establish a formal peer review evaluation program, the office must bear in mind that the benefits of this process are not yielded by the mere existence of the process.

The benefits to be derived from the program will only become apparent when the procedure is supported and administered with consistency and fairness. This means that both lawyers and management must exercise equanimity in fulfilling their obligations to the office's objectives. The lawyers must not view this as an intrusion on their freedom, and management must not sidestep its obligation to confront the problems. The poor performer must be dealt with; so must the individual who is unwilling to assign work to others. Some problems, such as shifts in the partner's principal practice areas, may not be within the partner's immediate control, but by stepping in early enough, office management will be in a better position to keep the problem from accelerating.

Counseling

Some offices have made arrangements with psychologists, psychiatrists, or other professionals to provide partners with counseling concerning personal and office related problems. The partners avail themselves of these services in strictest confidence. The author is familiar with several offices, of varying size, that have retained the services of outside professionals to counsel partners who may feel the need for such assistance. These professionals bill the law office, on a monthly or quarterly retainer basis, without identifying the partner(s) obtaining treatment.

Some offices assign the task of counseling the problem partner to the managing partner or the executive committee. A few offices may appoint a special committee consisting of one or more partners who are respected by the problem partner. Others may decide to retain a management consultant who is experienced with the dynamics and operations of law office partnerships to study the office in order to identify the problems and then facilitate discussions of the issues to recommend possible solutions. Depending on the nature of the problem, these recommendations may include changes in office governance, management of practice areas, office operations, compensation, or the retaining of other professional assistance.

The managing partner, executive committee, or a special committee of partners usually will meet privately with the problem individual to review the obligations that partners are expected to satisfy and to advise this person of the office's concerns. During these talks, the committee usually discusses the benchmarks against which partners are evaluated and how this partner falls short. These talks might enable the individual to grasp how this problem is affecting the firm. This approach is particularly suited for dealing with office-related issues such as lower productivity, fewer billable hours, lower billings, and collections.

During this meeting it is not uncommon to learn that the problem partner is fully aware of the situation and knows what to do to overcome it. If the partner has a suggested plan for correcting the situation that appears to be satisfactory and the counseling partner agrees that its implementation would not create further difficulties, the partner should be encouraged to proceed. However, if the individual is unwilling or unable to acknowledge the problem, then the counseling partner may have to recommend more stringent action.

Of Counsel Status

If a partner is unwilling or unable to acclimate individual performance to the office's expectations and/or requirements, lawyer management has an obligation to recommend, and ultimately proceed with corrective action. Some offices offer older partners an opportunity to transfer from active to "Of Counsel" status. As Of Counsel, the partner is entitled to retain an office and share secretarial assistance with limited duties to perform in the office's behalf. In addition to fees based on unbilled work and uncollected or undistributed income, the partner would continue to receive a guaranteed salary but might not receive the other allocations that active partners are entitled to receive.

Of Counsel status has been a successful vehicle for handling situations where a partner who controls an important client cannot be trusted to provide legal counsel to that client or other clients. In this situation, the office must effect certain organization changes so that responsibility for that client is transferred to other partners. This may be accomplished by arranging for at least one other partner to share the client's work with the problem partner.

An effort should be made to increase the amount of personal and professional contact that the second partner has with the client, ultimately to the exclusion of the problem partner. This is usually an extremely delicate matter and must be supported until the client becomes a client of the office itself.

Early Retirement

If the partner is eligible for early retirement and elects to exercise this option, then he or she should have the right to withdraw from the office after providing a certain amount of notice. A partner retiring under these circumstances usually is eligible for certain benefits.

Expulsion

Expelling a partner from a law office is one of the most dramatic decisions a partnership ever confronts. Most partnership agreements with an expulsion provision enumerate such offenses as violation of ethics or professional misconduct, actions that harm the office and its reputation, serious financial difficulties with creditors, infraction of provisions of the office's articles, and other violations as reasons for dismissal.

Some offices provide that the expelled partner be paid on the same basis as a withdrawing partner. Other offices provide for limited payments to the expelled partner, or none at all. In typical situations where expulsion has occurred, the counseling partner has recommended that this action be taken only after several meetings with the problem partner, accompanies by written warnings, without any change in behavior.

Reduced Draws

Where a partner has an adequate volume of available client work but has not performed at the expected level, the office may be required to reduce that person's draw accordingly. In many offices, the solution is to keep the problem partner's income at a constant level while the percentage or points assigned to other partners increases. Under some circumstances, offices will reallocate billing and revenue-production targets and compensate the partner in direct proportion to his contribution. Most offices will allow the problem partner to re-establish his or her former compensation level by improving performance and increasing production and billings.

Reassignment of Responsibilities

Where improvement does not occur, offices also have reassigned a problem partner's client and billing responsibilities because of the failure to satisfy the firm's performance standards.

Change of Status

In addition to stripping partners of certain responsibilities, some firms have created a second class of "non-equity" partner. In these situations the non-equity partner may have his or her capital contribution returned over a period of time.

Extended Outside Treatment

Where the problem partner requires hospitalization or extended outside treatment, it is not uncommon for offices to grant an unpaid leave of absence. Upon the partner's return to the office, the managing partner or executive committee, in conjunction with the problem partner, may determine an appropriate work schedule and basis for compensation. Some offices have agreed to compensate the partner at a set figure based on a prearranged number of work hours and specified duties. If the partner satisfies these obligations, he may be eligible to return to his former status with the other partners' approval.

Conclusion

Increased competition among law offices to attract and retain top partners and associates has placed greater pressure on lawyer management to face the issues involving the problem partner. More offices are recognizing the necessity and importance of satisfying the professional, personal, and economic objectives of partners and associates. Lawyers overall are experiencing more opportunity to get what they want somewhere else when their office is not providing it. The downside of this increase in mobility is the dissolution of loyalty to personal relationships and to law offices. Most offices have learned that "benign neglect" works both ways. The do-nothing-of-consequence, mutter-a-lot, hold-back-and-wait-for-retirement lawyer is as much of a detriment to the office as the lawyer manager who delays and avoids dealing with that problem partner in the hope that maybe the problem will resolve itself.

This approach does not work for either side. Partners are less willing to tolerate the problems created by others particularly when their livelihood is at stake. The problem partner soon learns that tradition, established hierarchy, and age are no longer the shields they once were, especially when performance or lack thereof results in a stabilized or declining level of business. Offices must be willing to prepare themselves to cope with the problem partner in a straightforward fashion to remedy the situation and, maybe more importantly, to let the other partners know that lawyer management is not willing to sit by and let the problem partner take advantage of the office. The modern law office cannot risk its future by bowing to the status quo.